Palestinian Australian assaulted and abused on Sydney train ‘shocked’ police charged assailant with assault but not hate speech | Race

Palestinian Australian filmmaker Shamikh Badra, who claimed to police that he was assaulted and racially abused on a Sydney train following an anti-immigration march, was “shocked” when police charged his attacker with ordinary assault rather than hate speech.

The attack, which Shamikh’s brother Majed Badra recorded on his phone and on CCTV in August, raised questions about the NSW government’s controversial attempt to criminalize racial slurs and the lack of prosecution.

The Badra brothers, whose family members were killed during the Gaza war and who had recently been reunited with their elderly mother, were verbally abused following the March Australia rally. They claim the conflict started when Majed was told to take off his Palestinian scarf.

Nicholas Haskal, 46, was charged with common assault on Shamikh in October. Haskal pleaded guilty in mid-November and was granted probation for 12 months. No criminal convictions were recorded.

Shamikh said this week he was “shocked” to learn police had not filed additional charges.

“These did not include racist slurs or the targeting of me and my brother as Palestinians.”

The agreed facts state that Shamikh and Majed boarded a train at Sydney Town Hall station at around 2.43pm on Sunday, August 31, after attending a separate pro-Palestinian rally in the city.

Police said Haskal boarded the train from Central station “after attending the March Australia rally” and was seated a few meters away.

Approximately two minutes later, an “argument” occurred.

The facts state that as the incident continued to “escalate,” Haskal rose from his seat, approached the brothers, and “continued to yell.” Shamikh stood up to stand between the defendant and Majed.

The facts state that “due to increased interaction,” Majed took out his cell phone and began filming.

Police said Haskal attacked Majed “because he did not want to be filmed”, tried to take his mobile phone and “in doing so shot the victim” [Shamikh] on his right arm”.

The facts state that after the train stopped in Macdonaldtown, a “brief physical confrontation” took place before the parties separated.

A second verbal altercation ensued, in which Haskal pushed Shamikh “with the victim”. [Shamikh] The document states that the defendant was kicked to keep him back.

The three men then got off the train.

The agreed facts do not refer to the men’s allegations of racist abuse or the cause of the altercation that Badras said was – Majed being told to take off his keffiyeh.

Shamikh claims Majed was told: “If you want to fight for Palestine, go back there.” This comment was not included in his cell phone records.

The facts show that the incident was recorded on mobile phones and CCTV. In footage of Majed seen by Guardian Australia, the verbal abuse appears to escalate as the brothers confront a group of several men.

Haskal says, “Get out of here. We don’t like you in our country. We don’t want you in our country.” “We don’t want you here. Go away.”

In another clip, Haskal says: “This is Australia, you like to get free money, you fucking poor bastard” as Shamikh shouts “racists” and “Free Palestine” as the brothers retreat towards the train doors.

Shamikh said he and his brother went to Canterbury police station that day and gave statements. Majed later provided the cell phone footage.

The agreed facts state that Haskal attended Cabramatta police station on September 24 and presented a version of the incident in a recorded interview.

Shamikh said police later contacted him to tell him a man had been charged with common assault. He was told that the matter would be discussed “in November” and that he would be informed “when that happens”.

He said police called him after Haskal’s only court appearance and informed him that the 46-year-old had pleaded guilty. Requests to contact the police prosecutor went unanswered, he said.

The brothers’ lawyer, Nick Hanna, said communication with police was “inadequate”. The Badras were not told why charges were not brought regarding the alleged racist abuse, compounding their distress.

“We don’t know all the evidence the police obtained during their investigation,” Hanna told Guardian Australia.

“There may be a reasonable explanation for this, but both the Badras and the public deserve to know what it is.”

Hanna said police told him they were seeking legal advice on whether additional charges could be brought.

University of Sydney legal expert Prof Simon Rice said the relevant provisions of the NSW Crimes Act – section 93Z, which covers incitement to violence on grounds of race, and section 93ZAA, which covers incitement to hatred – must be proven beyond a reasonable doubt.

Rice said 93ZAA does not necessarily cover hateful conduct. Critics of the crime, which came into force just before the train attack, accused the Minns government of ignoring its own 2024 review into hate speech.

The report argued that such laws would “add uncertainty and subjectivity to criminal law.”

Rice said this week that unless there was a clear intent to incite hatred, “that conclusion must be drawn from what is said and done.” The academic added that it could not be understood from Majed’s video that the defendant had such an intention.

Rice said attending an anti-immigration march could be considered by the court during the intent argument.

“What we really need is a court decision to decide how this provision will work,” he said.

“We will only take this case if the police charge someone. [But] “I can understand why they didn’t think this was the best situation to try.”

Asked why hate speech charges had not been laid in Shamikh’s case, a NSW police spokesman said Section 93Z requires the threat of violence to be directly linked to a protected characteristic of the person, including their race or religion.

“The racial/religious element required by Article 93Z in this matter has not been proven,” they said. NSW police did not address why charges were not pursued under 93ZAA.

“Police continued to communicate with the complainant and her legal representative throughout the course of the case,” a police spokesman said.

Haskal’s defense lawyer Declan Quinn said: “It’s up to the police how they frame the information sheet and what allegations they put in there.”

Quinn said his client “pleaded guilty at the first opportunity and the police fact sheet was not discussed at all”.

“He pleaded guilty because the arresting officers framed it,” the defense attorney said.

NSW attorney general Michael Daley said the case was being dealt with independently by the courts. He added: “This type of behavior is unacceptable and has no place in NSW.”

NSW Greens justice spokeswoman Sue Higginson said she was concerned police had decided the alleged racist abuse was “somehow not a relevant fact”.

“I cannot understand how a police officer could look at the video evidence and decide that racism was not included in the memorandum detailing this attack.”